In judging Theme 1199 (ARE 843,989), the Federal Supreme Court ruled this Thursday (08/18) that the amendments made by Law 14,230/2021 to the Improbity Law (Law 8,429/1992), as a rule, only apply retroactively to proceedings brought on the grounds of administrative improbity committed through a negligent act, provided there is no final decision (final and unappealable judgment).

Four points of Theme 1199 were under discussion regarding the retroactivity of the law’s amendments to:

• Improbity actions dealing with negligent acts, even with a final and unappealable decision;
• Improbity actions dealing with negligent acts, provided there is no final and unappealable decision;
• Application of the intercurrent limitation period (4 years from the legal milestones) to pending actions; and
• Application of the general limitation period (8 years from the act of improbity) to pending actions.

Justice Alexandre de Moraes, the reporting justice, voted for the retroactivity of the new law only for pending actions (without a final decision), with the presence of the subjective element of intent (when there is an intention to commit the act harmful to the public treasury or public assets) to be proven. On the other points of the theme, Moraes held that the law does not apply retroactively.

All the justices, with some differences on one point or another, followed the reporting justice, so that the only point approved by majority vote (7 x 4) was the retroactivity of the law for improbity actions based on acts of improbity in the negligent modality, provided there is no final decision (final and unappealable judgment).

The vote was close (6 x 5) in declaring the non-retroactivity of the amendments to the improbity law on two points of the theme: the review of improbity actions based on negligent acts, even with a final and unappealable decision, and the application of the new time frame and general limitation period of 8 years which, according to the new legal provision, must be counted from the occurrence of the act or, in the case of continuing infractions, from the day on which they ceased (art. 23 of the Improbity Law).

At the end of the judgment, the following thesis was established:

1. Proof of subjective liability is required to classify acts of administrative improbity, requiring – in articles 9, 10 and 11 of the LIA – the presence of the subjective element – INTENT;

2. The beneficial rule of Law 14,230/2021 – repeal of the negligent modality of administrative improbity – is NON-RETROACTIVE, by virtue of article 5, item XXXVI, of the Federal Constitution, and does not affect the effectiveness of res judicata, nor the enforcement of sentences and related incidents;

3. The new Law 14,230/2021 applies to negligent acts of administrative improbity committed while the previous text of the law was in force, but without a final conviction, due to the express repeal of the previous text, and the competent court must analyze any intent on the part of the agent;

4. The new limitation regime provided for in Law 14,230/2021 is NON-RETROACTIVE, with the new time frames applying from the publication of the law.